In 1875, Republican Representative James G. Blaine (R-Maine), then Speaker of the U.S. House of Representatives, proposed a constitutional amendment to ban government aid to educational institutions with a religious affiliation. This idea was largely motivated by anti-immigrant bigotry and targeted Catholic schools that served large immigrant populations.
That amendment never passed, but Blaine’s crusade led many states to add similar provisions to their constitutions. Today, 37 state constitutions contain “Blaine amendments.” Under the guise of advocating “separation of church and state,” these policies have been an obstacle to school choice programs that include religious schools.
Between 2017 and 2022, the U.S. Supreme Court issued three rulings that sounded the death knell for the state-level Blaine Amendments: Trinity Lutheran Church of Columbia v. Comer, Espinoza v. Montana Department of Revenue, AND Carson vs. Makin. Education law expert Charles J. Russo wrote in an April 2023 article about America: The Jesuit Magazine that these rulings open up “more ways public funds can support faith-based education.” But federal constitutional questions remain unresolved on three important issues related to school choice funding.
One such issue involves the public/private Blaine amendments still active in some states. These prohibit aid to all private schools, religious or non-religious. For example, Article VII, Section 1 of the Alaska Constitution on “Public Education” states that “No money shall be paid from public funds for the direct benefit of any religious or private educational institution.”
Most state courts have interpreted these laws as prohibiting aid to private schools, not the students who attend them. But some state courts – such as those in Alaska, Hawaii and Massachusetts – have been more restrictive and do not allow programs that help even private school students. In light of these recent Supreme Court decisions, such laws are now open to potential challenges.
A second unresolved issue concerns anti-discrimination laws and arises from a 2022 case that occurred in Maine, Carson vs. Makin. The state of Maine has long offered a tuition payment program that allows families in towns without a public high school to use public taxpayer money to send their children to public and private schools, including religious schools. This program was changed in 1981 to exclude religious schools, leading to a legal challenge by two Maine families.
In 2020 the U.S. Court of Appeals for the First Circuit ruled that such a freeze on taxpayer funds for religious schools was constitutional. However, the U.S. Supreme Court ultimately ruled by a 6-3 vote that this exclusion was unconstitutional because it amounted to religious discrimination.
Immediately following the Supreme Court’s decision, Maine Attorney General Aaron Frey criticized it in a public statement, saying, “The education provided by the schools in question…is hostile to public education. They promote a single religion to the exclusion of all others, they refuse to admit gay and transgender children and openly discriminate in the hiring of teachers and staff.” Public money, Frey insists, should not “promote discrimination, intolerance and bigotry.”
Frey also stated that all schools “that accept public funds must comply with the anti-discrimination provisions of the Maine Human Rights Act, and this would require some religious schools to eliminate their current discriminatory practices.”
That of the Supreme Court Carson vs. Makin The decision does not clarify whether schools that receive public funding must comply with all state-level anti-discrimination laws, even if their apparently discriminatory policies are rooted in their religious beliefs. The matter will undoubtedly reach the U.S. Supreme Court.
A third unresolved question is whether states with secular public charter schools – privately operated but publicly funded public schools – can also allow private religious charter schools. The answer depends on the state action doctrine, a legal concept that limits the Constitution’s “equal protection of the laws” to state action, not private action. If for federal constitutional purposes charter schools “are private then…prohibitions on charter schools being religious are unconstitutional. But if they are public – i.e. ‘state actors’ – then the Establishment Clause of the First Amendment probably requires them to be secular” , writes Notre Dame Law Professor Nicolle Stelle Garnett in a December 2022 City newspaper item.
This issue divides school choice advocates. For example, Garnett argues that charter schools are not state actors for federal constitutional purposes. But the National Alliance for Public Charter Schools disagrees, arguing that “charter schools are public schools and are state actors for purposes of protecting students’ federal constitutional rights.”
The U.S. Supreme Court had the opportunity to take up a North Carolina case that raised questions about the constitutional rights of charter school students under the federal Equal Protection Clause, Charter Day School v. Peltier. The Biden administration urged the justices to pass the case, and the Court declined to take it up in June 2023. Supreme Court clarity on this state plaintiff issue will wait for another day, which could come to the Court via Oklahoma .
Oklahoma officials had approved plans for an online or virtual religious charter school that would be paid for using taxpayer dollars — like all charter schools — and operated by the Roman Catholic Archdiocese of Oklahoma City and the Diocese of Tulsa.
But Oklahoma’s current Republican Attorney General Gentner Drummond in January 2023 formally withdrew the school’s approval granted by his predecessor. Also in October he filed a lawsuit against the Statewide Virtual Charter School Board that had approved the school, arguing that charter schools are state actors and therefore must be secular. This raises the same state action doctrine discussed above that has yet to be presented to the U.S. Supreme Court.
A religious charter school model raises some prudential questions for Catholic schools. As Kathleen Porter-Magee, superintendent of Partnership Schools, a private network of urban Catholic elementary schools, wrote in August 2023 America: The Jesuit Review, “The most obvious reason to be cautious is the threat to religious freedom…the blurring of the lines between public and private schools…could invite far greater government control over what it means to teach the faith than the Church wants “.
Recent Supreme Court precedent has crumbled the wall between public education dollars and religious schools, but further clarity on the issues detailed above is needed, and the Court will likely be called upon to provide it in the near future.